Family law disputes can be especially challenging for the couple involved. They are never easy. Often, the participants are parents who share children. Sometimes, they are shareholders who share a business. The point is that there is a lot at stake. The issues are very personal and there is an emotional layer to the family law conflict that we don’t always see in other legal disputes. There are many reasons why every separated spouse should want to find their way to a reasonable settlement. Not the least of which is that it will save money.
Not every family law case leads to litigation. Some cases reach a negotiated settlement without court proceedings ever having been commenced. Reasonable spouses assisted by reasonable lawyers is probably the best combination to reach a settlement. In some cases, parties opt into mediation and bring in a skilled mediator to help bridge the gap and avoid going to court. There are also those circumstances where going to court is exactly what is needed, for many reasons.
Just because you are a litigant in a family law court case does not mean you park common sense at the steps of the courthouse or in Zoom’s virtual waiting room and let a judge decide everything. There are many steps in the Family Court proceeding that are geared towards settlement. The Family Court Rules identify their primary objective to enable the court to deal with cases justly.
One way the court looks to promote that primary objective is to help parties settle all or part of the case. Case Conferences, Settlement Conferences and Trial Management Conferences are all opportunities for the court to encourage settlement of some or all of the issues. The court may even turn the start of a Trial into a last chance settlement meeting.
One key component of reaching a settlement is being prepared. Do the work so the case has a chance to settle. In most cases that has a lot to do with making full financial disclosure. The Family Law Act makes it a duty to provide financial disclosure in cases involving child or spousal support and property issues. Disclose early and disclose often. Holding back does not pay off. Parties need to make well informed decisions and settlements are often delayed or frustrated when important and necessary information is withheld. If you want to help your case along, make sure you do your part to meet the disclosure requirements.
Offers to Settle
An Offer to Settle can be made at any time, even before the case is started. You can even make an Offer that only deals with part of the case. If your view of the case changes and you need to change your Offer to Settle, you can do that too. Offers can be made for various stages of the case, such as for a motion to determine interim support, or for the entire action in order to avoid a Trial.
Rule 18 of the Family Court Rules sets out the rules for Offers to Settle, including costs consequences. The cost consequences are a compelling reason for making an Offer. Unless the court orders otherwise, a party who makes an offer is entitled to costs to the date the offer was served and full recovery of costs from that date, subject to certain conditions being met. Essentially, if the offer was open for acceptance at the time of the hearing and the court makes an order that is as favourable as or more favourable than the Offer, then there is a good chance that the party will be rewarded for having made a meaningful Offer with some costs to be paid by the other party. A solid strategy for what goes into that Offer to Settle would be to keep it reasonable enough that you might actually beat the offer and be awarded costs in your favour.
So, what is another reason to make an Offer to Settle? Wouldn’t it be nice if the other party actually accepted the Offer and you settled the case without a trial?
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Camille Riggs is a senior lawyer and Counsel in Siskinds Family Law Group. If you would like to discuss your separation or divorce, or any specific family law issue, she can be reached via email at [email protected] or by phone at 519-660-7866.